O'Kinealy and Ameer Ali, JJ.
1. This is an appeal from the decision of the Additional Sessions Judge of Murshidabad, convicting Jukni of an offence under Section 494 of the Indian Penal Code, and sentencing her to three months' rigorous imprisonment.
2. The case is hardly distinguishable in any point from the case of In re Mussamut Channa 7 C.L.R., 354. The defence in that case, as in this case was, that by the custom of the caste sagai marriage or nikka, which generally means a second marriage, was admissible, and that the husband had relinquished the wife.
3. In this case the Judge was of opinion that the husband had not relinquished the wife. One assessor was of a different opinion, and the second assessor, without referring to the question of relinquishment at all, was of opinion that the custom of nikka marriages prevailed in the caste.
4. We think there is a large mass of evidence, some of it unrebutted in any way, to show that such a custom does exist. We agree with the assessor who came to the conclusion that Matilal Saha had relinquished his wife. No doubt it has been pointed out to us by Mr. Kilby on behalf of the Crown that, according to a decision of the Bombay High Court, such a marriage would not be binding; but a second marriage has been for a long time recognized by this Court among certain classes of people in this country.
5. We think, therefore, that the decision of the Judge must be set aside, and, acquitting the accused, we direct her discharge.